Millions of working women of childbearing age are not included in protections for nursing mothers

The federal Break Time for Nursing Mothers provision of the Fair Labor Standards Act (FLSA) requires employers to provide reasonable unpaid break time, as needed, for an employee to express breast milk for her nursing child for one year after the child’s birth.  Further, employers are required to provide a place for the employee to express milk—other than a bathroom—that is shielded from view and free from intrusion from coworkers and the public. These requirements were signed into law in 2010 as part of the Affordable Care Act and were a landmark step toward securing pumping accommodations for countless nursing mothers in the workplace.

These provisions were designed to prevent harmful outcomes that can occur without basic workplace accommodations for expressing breast milk, such as negative health consequences, the inability to breastfeed, and economic harm including job loss (documented in the upcoming report Exposed: Discrimination against Breastfeeding Workers from the Center for WorkLife Law). However, the law has several significant problems that leave nursing mothers at risk. One key issue is that due to where these provisions are placed in the FLSA—in the section that requires employers to pay overtime compensation if an employee works more than 40 hours in a week—all those workers who are exempt (i.e. excluded) from the overtime protections of the FLSA are also exempt from the break time protections for nursing mothers.  These exemptions affect roughly one out of every four working women of childbearing age (between the ages of 16 and 44).  There are a total of 37.8 million working women of childbearing age in the United States, and more than 9 million of them are excluded from the Break Time for Nursing Mothers protections.  That includes more than 1 million black women, 976,000 Hispanic women, 825,000 Asian women, more than 6 million white women, and 185,000 women of other races.  The below table shows further breakdowns by state and industry.

In addition to the more than 9 million working women of childbearing age who are legally exempt (i.e. excluded) from these protections, additional millions are at risk of being misclassified as exempt—particularly the 3.7 million salaried working women of childbearing age who earn above the salary threshold for exemption but whose job duties mean they should be eligible for the protections. Putting these groups together, there are 12.7 million working women of childbearing age who are either legally exempt (i.e. excluded) from the break time for nursing mothers protections of the FLSA, or are vulnerable to being misclassified as exempt. While certain state and local laws provide additional protections, far too many breastfeeding workers don’t have the legal protections they need.

The Supporting Working Moms Act, currently under consideration in both houses of Congress, would bring 7.5 million white collar workers under the law’s protection for the first time. This would go a long way toward closing the coverage gap, providing protections to 83 percent of currently-exempt working women of childbearing age. It would also strengthen protections for 3.7 million workers who are vulnerable to misclassification as exempt. It is an important step in providing millions of working women of childbearing age the legal protections that they need.

The forthcoming study from the Center for WorkLife Law lays out further principles of a model lactation policy. In addition to universal coverage, these principles include strong enforcement mechanisms, reasonable accommodations for diverse needs and circumstances, functional space requirements, and provisions—like compensable lactation breaks—that address the fact that hourly employees, particularly low-wage workers, may be unable to take advantage of pumping breaks when doing so results in wage loss.  These are the kind of common-sense provisions that would improve working conditions for breastfeeding parents and help ensure a modern workplace that is compatible with motherhood.

Table 1

Millions of working women of childbearing age are excluded from key protections for nursing mothers

Women workers age 16-44
Total Excluded from the Fair Labor Standards Act’s Break Time for Nursing Mothers Protections
All 37,753,000 9,039,000
White 22,181,000 6,046,000
Black, nonhispanic 5,288,000 1,007,000
Hispanic 6,822,000 976,000
Asian 2,460,000 825,000
Other 1,002,000 185,000
Alabama 530,000 104,000
Alaska 86,000 19,000
Arizona 741,000 151,000
Arkansas 340,000 79,000
California 4,384,000 994,000
Colorado 696,000 174,000
Connecticut 413,000 107,000
Delaware 118,000 28,000
District of Columbia 129,000 70,000
Florida 2,203,000 474,000
Georgia 1,225,000 308,000
Hawaii 159,000 31,000
Idaho 193,000 32,000
Illinois 1,523,000 378,000
Indiana 822,000 155,000
Iowa 420,000 90,000
Kansas 359,000 71,000
Kentucky 496,000 106,000
Louisiana 522,000 114,000
Maine 144,000 27,000
Maryland 758,000 228,000
Massachusetts 895,000 269,000
Michigan 1,132,000 231,000
Minnesota 747,000 180,000
Mississippi 333,000 68,000
Missouri 795,000 186,000
Montana 118,000 21,000
Nebraska 249,000 54,000
Nevada 342,000 58,000
New Hampshire 165,000 39,000
New Jersey 999,000 312,000
New Mexico 214,000 51,000
New York 2,282,000 712,000
North Carolina 1,183,000 272,000
North Dakota 100,000 22,000
Ohio 1,389,000 293,000
Oklahoma 427,000 101,000
Oregon 471,000 99,000
Pennsylvania 1,530,000 373,000
Rhode Island 138,000 29,000
South Carolina 560,000 125,000
South Dakota 104,000 18,000
Tennessee 763,000 163,000
Texas 3,193,000 800,000
Utah 385,000 64,000
Vermont 77,000 18,000
Virginia 1,060,000 328,000
Washington 837,000 205,000
West Virginia 174,000 37,000
Wisconsin 764,000 157,000
Wyoming 66,000 13,000
Agriculture, forestry, fishing, hunting 181,000 25,000
Mining 56,000 22,000
Construction 399,000 71,000
Manufacturing 2,170,000 444,000
Wholesale & retail trade 5,340,000 522,000
Transportation and utilities 850,000 142,000
Information 646,000 210,000
Financial activities 2,686,000 760,000
Professional and business services 3,758,000 1,172,000
Educational and health services 13,425,000 4,610,000
Leisure and hospitality 5,145,000 253,000
Other services 1,697,000 246,000
Public administration 1,398,000 563,000

Source: EPI analysis of Current Population Survey Outgoing Rotation Group microdata, 2015-2017.

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